CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Trial Court’s Grant of Summary Judgment On Ground Not Asserted By Moving Party Upheld

December 17, 2015 — Laura C. Williams & R. Bryan Martin – Haight Brown & Bonesteel LLP
In Marlton Recovery Partners, LLC v. County of Los Angeles, et al. (filed 11/20/15), the California Court of Appeal, Second Appellate District, affirmed summary judgment in favor of the defendants County of Los Angeles, the County Treasurer-Tax Collector and Board of Supervisors (collectively the “County”) despite the fact summary judgment was granted on grounds not raised by the County. The Court of Appeal determined that because the plaintiff could not have shown a triable issue of material fact on the ground of law relied upon by the trial court, summary judgment was proper. In the underlying case, plaintiff sought cancellation of penalties on delinquent property taxes for 26 parcels under Revenue and Taxation Code §4985.2, which allows the tax collector to cancel such penalties under certain circumstances. The County denied the request prompting plaintiff to challenge the denial on a petition for peremptory writ of mandate to the trial court. Reprinted courtesy of Laura C. Williams, Haight Brown & Bonesteel LLP and R. Bryan Martin, Haight Brown & Bonesteel LLP Ms. Williams may be contacted at lwilliams@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Read the court decision
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Washington Court Tunnels Deeper Into the Discovery Rule

July 09, 2019 — Lian Skaf - The Subrogation Strategist
Often times, properly analyzing when a statute of limitations begins to run – not just how long it runs – is crucial to timely pleading. In Dep’t of Transp. v. Seattle Tunnel Partners, 2019 Wash.App. LEXIS 281 (Was. Ct. App. Feb. 5, 2019), Division Two of the Court of Appeals of Washington addressed when the discovery rule starts the statute of limitations clock on a negligence cause of action. The court held that the statute of limitations begins to run when the plaintiff knows that the factual elements of the claim against the defendant exist. The clock starts to run even if the plaintiff wants to investigate the possibility of other contributing factors or the defendant identifies opposing viewpoints on the theory of the claim. In this matter, the Washington State Department of Transportation (WSDOT) contracted with an engineering firm, WSP USA, Inc. (WSP), for an evaluation of the Alaskan Way Viaduct in 2001. As part of this project, WSP retained the services of Shannon and Wilson (S&W), another engineering firm, to conduct geological profile logs, groundwater-pumping tests, and prepare technical memoranda. In 2002, WSP and S&W installed a pumping well with an eight-inch steel casing (TW-2). In 2009, apparently based on the work done by WSP and S&W, WSDOT determined that a bored underground tunnel was the best option for replacing the viaduct. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

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Elyria, Ohio, to Invest $250M to Halt Illegal Sewage into Black River

December 18, 2022 — Jim Parsons - Engineering News-Record
Elyria, Ohio, will invest nearly $250 million in capital improvement projects over the next 20 years to eliminate longstanding discharges of untreated sewage into the Black River, 10 miles upstream from Lake Erie. The plan is part of a consent decree negotiated with federal and state regulators following more than 1,000 illegal discharges from the city's sewer system into the river or its tributaries since 2011. Reprinted courtesy of Jim Parsons, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
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Adaptive Reuse: Creative Reimagining of Former Office Space to Address Differing Demands

March 27, 2023 — Cait Horner, Allan C. Van Vliet & Adam J. Weaver - Gravel2Gavel Construction & Real Estate Law Blog
Empty office buildings downtown. A housing shortage in almost every major market. Is there a way to address both issues at once by converting historic but underutilized office buildings into apartments and condos in city centers? It’s an idea that has been discussed, and in some cities, implemented in recent years. But while the idea seems simple enough—repurpose existing office space for residential and mixed-use projects—there are some real challenges limiting the feasibility of large-scale office to residential conversion. The commercial real estate market is facing an uncertain future. Even as some companies have started requiring that their workers return to the office, many continue to operate under their hybrid or fully remote working models, which companies may commit to permanently. And while some big cities have seen office occupancy levels increase in the past few months (CBRE notes that Austin and Houston both saw occupancy levels above 60% in January, up around 25% from 2022 levels), the ongoing impact of COVID-19 and uncertainty in the global financial markets are keeping many office buildings empty in major cities around the country. Those tenants who are returning to the office are focusing their search for office space on high-quality, sustainable, amenity-filled spaces to entice workers to return to the office. This flight to quality leaves some older and, in many cases, architecturally relevant, office buildings behind. As a result, there are growing opportunities for the potential adaptive reuse of these existing underutilized structures. Reprinted courtesy of Cait Horner, Pillsbury, Allan C. Van Vliet, Pillsbury and Adam J. Weaver, Pillsbury Ms. Horner may be contacted at cait.horner@pillsburylaw.com Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Read the court decision
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Four Key Steps for a Successful Construction Audit Process

May 03, 2021 — Ronald L. Williams, Fox Rothschild LLP - ConsensusDocs
The implications of the audit provisions contained in construction agreements between owners and contractors owners extend far beyond post-completion bean counting, and can affect multiple aspects of a project, from project administration to relationships with key subcontractors. It is critically important that contractors give audits the attention they deserve by taking the following four steps. First, invest the time to negotiate the audit provisions that ultimately appear in contracts with the owner. Second, ensure that the project team and the owner’s project auditors engage in timely communication during construction. Third, make certain that post-completion audit administration is prompt and complete. And finally, carefully draft adequate “flow-down” provisions with subcontractors and vendors so that they understand and comply with their contractual obligations, as well as the expectations of the contractor and owner. All four aspects are critical, and if not addressed effectively can undermine the profitability of the contract, and contractors’ business relationships with both upstream and downstream parties. Negotiations At the outset of contract negotiations, a contractor must completely understand the owner’s audit process expectations. An owner’s understanding of the audit process and its potential pitfalls depends on their own experience, as well as the knowledge of their personnel, including internal audit members and external auditors. Negotiations, which like the audit itself need not be adversarial, can be educational for both the owner and any representatives involved. Read the court decision
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Reprinted courtesy of Ronald L. Williams, Fox Rothschild LLP
Mr. Williams may be contacted at rwilliams@foxrothschild.com

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Claims Litigated Under Government Claims Act Must “Fairly Reflect” Factual Claims Made in Underlying Government Claim

November 27, 2023 — Garret Murai - California Construction Law Blog
Unlike horseshoes and hand grenades, close sometimes isn’t close enough. In the next case, Hernandez v. City of Stockton, 90 Cal.App.5th 1222 (2023), the Third District Court of appeal found that a pedestrian who sued a public entity for personal injuries caused by an “uplifted sidewalk” was barred from pursuing his claim when it was revealed that he had in fact injured himself by falling into a hole left by an “empty tree well” (i.e., a tree well that did not contain a tree”). According to the Court, the pedestrian’s claim was barred because the factual basis for recovery asserted in his complaint was not “fairly reflected” in his government claim. The Hernandez Case In April 2018, pedestrian Manual Sanchez Hernandez injured himself while walking on a public sidewalk in Stockton, California. He submitted a government claim with the City of Stockton claiming that his injuries, which included injuries to his knee, hands and back, was caused by a dangerous condition on public property. In his government claim, Hernandez alleged that he tripped on an “uplifted sidewalk” at or near 230 E. Charter Way in Stockton, California and that his injuries were due because the City “negligently and recklessly designed, maintained and operated the subject property so as to cause [his] injuries.” Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Update Coverage for Construction Defect Claims in Colorado

February 11, 2013 — Tred R. Eyerly
Whether construction defect claims against an insured contractor or subcontractor are covered is undergoing an intense debate in Colorado that is reminiscent of the current coverage battle in Hawaii. Although I missed the case until recently, the decision in Colo. Pool Sys. v. Scottsdale Ins Co., 2012 Colo. App. LEXIS 1732 (Colo. Ct. App. Oct. 25, 2012), appears to divert from a prior case from the Colorado Court of Appeals, Gen. Sec. Indem. Co. v. Mountain States Mut. Cas. Co., 205 P.3d 529 (Colo. App. 2009). Gen. Security held that faulty workmanship, standing alone, was not an "accident." Gen. Security was heavily relied upon by the Hawaii Intermediate Court of Appeals when it found construction defects arose from breach of contract and were not covered under a liability policy. See Group Builders v. Admiral Insurance Co., 123 Haw. 142, 231 P.3d 67 (Haw. Ct. App. 2010). In Colo. Pool Sys., Colorado Pool hired subcontractors to construct a poll's concrete shell. After the shell was poured, an inspection noticed that some re-bar was too close to the surface. The owner turned to its general contractor, White Construction Group, and demanded that the pool be removed and replaced. White turned to Colorado Pool, who notified its carrier, Scottsdale. Read the court decision
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Reprinted courtesy of Insurance Law Hawaii
Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Cerberus, Blackstone Loosening Credit for U.S. Landlords

July 09, 2014 — Heather Perlberg and John Gittelsohn – Bloomberg
U.S. property owners with just one rental house can now get cash from Wall Street to buy more. Cerberus Capital Management LP, which initially targeted landlords with multimillion-dollar loans, is financing low-volume deals for small investors through its FirstKey Lending, with looser terms than government-backed mortgages from Fannie Mae and Freddie Mac, said Randy Reiff, the business’s chief executive officer. Blackstone Group LP (BX)’s rental lending arm, B2R Finance LP, is making a similar push to mom-and-pop landlords. “Our premise has always been to be able to lend to the middle market and entrepreneurial borrowers in the space, not just the institutional borrowers,” Reiff said. “The biggest guys have always enjoyed access to capital. The largest part of this market is really the entrepreneurial owners.” The companies are competing to lend to owners of the almost 14 million rental houses in the U.S. at a time when many Americans are struggling to get a mortgage and homeownership is declining. Cerberus and Blackstone, along with Colony Capital LLC, also are racing to package debt on homes managed by separate landlords for the first multiborrower bond sale. Ms. Perlberg may be contacted at hperlberg@bloomberg.net; Mr. Gittelsohn may be contacted at johngitt@bloomberg.net Read the court decision
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Reprinted courtesy of Heather Perlberg and John Gittelsohn – Bloomberg

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